It is true that if there is a will, there is a way. The Extraordinary Chambers in the Courts of Cambodia (ECCC) has so demonstrated with its recent arrests of former Khmer Rouge minister for foreign affairs Ieng Sary and his wife, ex-minister for social affairs Ieng Thirith.
There had been some doubt if Ieng Sary would be charged by the ECCC at all because of a royal pardon he had received in 1996 for his previous role in the Khmer Rouge regime. In 1979, he was sentenced to death along with Pol Pot by a “people's revolutionary tribunal” for genocide. In 1996, however, he led a breakaway faction that split the Khmers Rouge, hastening the end of its insurgency. He was rewarded with an amnesty which annulled the 1979 verdict. The pardon failed to last, however.
The ECCC did not charge Ieng Sary with genocidal crimes. To sidestep a potential controversy of trying the suspect twice for the same crime, it indicted him instead for crimes against humanity and war crimes. It is fascinating how legal terminology can be creatively exploited to suit a particular purpose.
An interesting question, nevertheless, is how deep the ECCC is prepared to dig into what else happened during the Khmer Rouge regime. Of course, the underlying agreement between the United Nations and the Cambodian government to create the ECCC refers only to crimes committed by “senior” leaders, which may appear to restrict the ECCC terms of reference. But the terminology seems to be loose enough for creative minds to explore further possibilities of enforcing liability for all involved, not just a select few.
The ECCC is charged with an interesting task of trying those who were alleged to be responsible for mass killings. This is the first necessary step towards addressing a culture of impunity that has, up to now, spread like bushfires in Cambodia. Its leaders in the past 50 years have been literally getting away with murder for too long. The ECCC trial ought to convey a message that their collective irresponsibility and impunity are no longer tolerated.
For now, the ECCC seems to deal only with soft targets - the losers who are also frail and in need of geriatric care. It is ironic that the arrests seem to do these accused a favour by bringing them to comfortable accommodations at the ECCC compound with nutritious food and round the clock top medical care. For any old and frail in any country, such a free treatment is a godsend.
It would be challenging, however, for the ECCC to extend their examination beyond the losers to include the winners who were thriving during the Khmer Rouge and are currently in government. Of course, incriminating evidence against winners is often unavailable, especially when they are still in power.
Influential academics and researchers, who had cosy relations with the Khmer Rouge, claimed they had found - when the Khmer Rouge was still in power - no evidence to support refugees’ early reports of killing fields in Cambodia. The reports were dismissed as a mere reflection of mental instability and as a justification for fleeing the country and their desire to be accepted for resettlement. Not until after the regime disintegrated have those same researchers produced evidence of the losers’ atrocities.
It would be an uphill, if not impossible, battle for the ECCC to dig deep to uncover what the winners were up to during the Khmer Rouge regime. It would have to take on some prominent ex-Khmer Rouge members who are now occupying high positions in the current government, such as the prime minister and minister for foreign affairs.
The prime minister was once a rising star in the Khmer Rouge cadre; he was a junior army officer who rose quickly to a commanding rank in the Khmer Rouge army in a relatively short period of time. It is indeed difficult to explain his meteoric rise without making an inference that he must have done something very right to impress, and thus secure quick promotions from the meritocratic regime that relied on mass killings to remain in power.
Another intricate case relates to the current finance minister, who served in 1976 as a minister in the Prime Minister’s Office of the Khmer Rouge regime when Pol Pot decided to appoint himself as prime minister, thus ending his obscure leadership role. It is incomprehensible that anyone could rise and stay close to the top without some essential personal attributes usually required by any tyrant. The minister was among the few in the leadership who survived Pol Pot’s suspicion and wrath; he would have had more than luck.
It is a tough call for the ECCC to come up with a full account of what all “senior” Khmer Rouge leaders and significant others did at the time. It would require much more than just the creative manipulation of the legal terminology.
But if there is will, there is way. Failing that, one has to wait until another regime change for evidence to come out.
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